14 FLRA No. 40
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Respondent
and
OVERSEAS EDUCATION ASSOCIATION
Charging Party
Case No. 3-CA-1952
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts and the contentions of the parties, /1/ and
including the amicus curiae brief filed by the Office of Personnel
Management, /2/ the Authority finds:
The complaint alleges that the Respondent violated section 7116(a)(1)
and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) when it failed to comply with section 7131(a) of the Statute by
denying official time and reimbursement for travel and per diem expenses
incurred by an employee on the Union negotiating team during ground
rules negotiations. The ground rules negotiations for a new collective
bargaining agreement were conducted on April 30 and May 1, 1979. The
record indicates that the employee, Union President Hal Mosher,
requested official time and reimbursement for his travel expenses and
per diem in connection with the ground rules negotiations in a letter
dated August 6, 1980, and that the Respondent denied the request by
letter dated September 15, 1980. Respondent granted the employee
official time for the actual ground rules negotiations, but refused to
authorize official time for his related travel or to grant reimbursement
for his travel and per diem expenses incurred in connection with such
negotiations.
Procedurally, the Respondent contends that the unfair labor practice
charge herein was filed untimely under section 7118(a)(4)(A) of the
Statute, /3/ inasmuch as the charge was filed on February 3, 1981, more
than six months after the completion of the ground rules negotiations
for which official time and reimbursement of travel and per diem
expenses were sought, and therefore the complaint should be dismissed.
The same position was taken by the Respondent and considered by the
Authority with respect to a previous unfair labor practice case
involving similar facts. Department of Defense Dependents Schools, 9
FLRA 769(1982). For the reasons stated in Department of Defense
Dependents Schools, the Authority concludes that, as the charge was
filed within six months of the Respondent's denial of the requested
reimbursement, it was timely filed.
The complaint herein alleges that the Respondent's violative conduct
was related specifically to ground rules negotiations. The Respondent
contends essentially that the entitlement to official time and related
travel and per diem expenses under section 7131(a) of the Statute does
not apply to such "ground rule" negotiations. /4/ In this regard, the
Respondent argues that official time for ground rules negotiations is
covered by the provisions of section 7131(d) of the Statute, rather than
section 7131(a), and is thus a negotiable matter rather than a matter of
statutory entitlement. Cited in support of this position were
negotiability decisions of the Authority which held generally that the
granting of official time to prepare for negotiations is a negotiable
matter under section 7131(d) of the Statute. /5/ However, those cases
are clearly distinguishable. Thus, as viewed by the Authority,
preparation for negotiations involves the unilateral act of one party in
anticipation of bilateral negotiations, while the negotiation of ground
rules involves the bilateral participation of the parties and is part of
the good faith negotiating process leading to agreement. In performing
their mutual obligation to bargain in good faith, the parties ordinarily
would need to make certain preliminary arrangements such as the
scheduling of the time, place, length and agenda of the meetings. This
is a necessary step in meeting "at reasonable times and convenient
places" as required by section 7114 of the Statute. /6/ The fact that
some parties mutually agree to set such preliminary arrangements apart
and call them ground rules negotiations does not separate them from the
collective bargaining process and the parties' mutual obligation to
bargain in good faith. Therefore, the Authority concludes that such
negotiations are encompassed within the meaning of section 7131(a), and
that employees designated by the exclusive representative to engage in
such negotiations are entitled to official time.
Accordingly, the Respondent's denial of official time for travel
incurred by an employee on the Union negotiating team in connection with
ground rules negotiations for a new collective bargaining agreement
constitutes a failure to comply with section 7131(a) of the Statute in
violation of section 7116(a)(1) and (8). Florida National Guard, 5 FLRA
365(1980), reversed as to other matters sub nom. Florida National Guard
v. Federal Labor Relations Authority, 699 F.2d 1082 (11th Cir. 1983)
cert. denied, 52 U.S.L.W. 3440 (U.S. Dec. 6, 1983).
However, with respect to the Respondent's denial of reimbursement of
Mosher's travel and per diem expenses, the threshold issue involved is
the same as the threshold issue decided in Bureau of Alcohol, Tobacco
and Firearms v. FLRA, 104 S.Ct. 439(1983) wherein the United States
Supreme Court concluded that the obligation of an agency under section
7131(a) of the Statute to provide official time to its employees
representing an exclusive representative in the negotiation of a
collective bargaining agreement does not encompass the payment of travel
expenses and per diem allowances. Pursuant to that decision and for the
reasons set forth by the Court, the Authority concludes herein that the
Respondent did not fail or refuse to comply with the provisions of
section 7131(a) of the Statute by its refusal to pay travel expenses and
a per diem allowance herein. Therefore, it follows that the Respondent
did not violate section 7116(a)(1) and (8) of the Statute in this
regard.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Defense Dependents Schools shall:
1. Cease and desist from:
(a) Failing and refusing to grant official time, pursuant to
section 7131(a) of the Federal Service Labor-Management Relations
Statute, to employee Hal Mosher for his time spent in a travel
status on April 29 and May 2, 1979, as the designated
representative of the Overseas Education Association, the
exclusive representative of its employees, in connection with
ground rules negotiations for a new collective bargaining
agreement conducted on April 30 and May 1, 1979.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant official time to employee Hal Mosher for his time
spent in a travel status on April 29 and May 2, 1979, as the
designated representative of the Overseas Education Association,
the exclusive representative of its employees, in connection with
ground rules negotiations for a new collective bargaining
agreement conducted on April 30 and May 1, 1979.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by an authorized
representative of the Respondent and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the remaining allegation of the complaint
in Case No. 3-CA-1952 be, and it hereby is, dismissed.
Issued, Washington, D.C., April 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
F